This article is written by Chandrasmita Priyadarshini, studying BA LLB from Kiit School Of Law, Bhubaneshwar. This article covers a comparative approach of prorogation in both the UK and India, details of R vs miller case which brought up prorogation to notice and effect of prorogation.
In democratic political systems, it has long been recognized that while strong institutions are essential for political development and stability, the role of political culture and political actors, who relate to and perform within the institutional framework of a polity, is equally important. Prorogation refers to the conclusion of a parliamentary session, causing a recess period and effectively terminating all parliamentary business. Prorogation is very different from the dissolution of parliamentary sessions.
This is to bring a comparative approach of prorogation and the controversy of the prorogation in the UK where the prime minister advised Her Majesty to prorogue the parliament. Prorogation recently got recognition from the case of R vs Prime minister as here it was challenged regarding unreasonable prorogation. This is where it was suggested that constitutional reforms/remedies be followed.
What is prorogation
A prorogation is a procedural act that ends a session of Parliament and permits a new session to be started. It brings effect to quash all the unfinished business in either House, hence, permitting the House to start afresh session. This means that bills that have not been passed by both the Houses lapse, orders by a House lapse, any warrant by the House committing a person to imprisonment for contempt of Parliament lapses, all notices on the notice paper are extinguished, committees established by sessional orders cease to exist and their inquiries are ended, and the Houses are unable to sit and transact business.
Accordingly, prorogation is sometimes used before the dissolution of the Lower House to prevent a continuing Upper House from sitting during the election period. Prorogation may be used mid-term as a housekeeping measure. In the United Kingdom, the Westminster Parliament is prorogued annually so that a new session may be opened with a new speech from the throne outlining the government’s program for the session.
Where there are standing orders that prevent a bill from being reintroduced to Parliament in the same session if it has already been rejected, prorogation may be used to start a new session so that a disputed bill can again be put to the Upper House. In the United Kingdom, this prerogative power is exercised by the Monarch following ministerial advice. This is based on constitutional law and conventions surrounding prorogation in the UK and other parliamentary systems from a comparative perspective of various other countries.
The scope of the prerogative power was analyzed by what standard was the lawfulness of the prorogation to be assessed. The government had argued that it was precisely the absence of such measurable standards which made this issue non-justiciable. A prerogative power is something that must have specific rules and regulations to prevent misusing of the powers by the executive which is also contradicting the constitutional principles.
Process of prorogation under the Indian Constitution
Under Article 85(2) of the Constitution, the President may from time to time prorogue Houses or either House of Parliament. Termination of a session of the House by an order by the President under the above constitutional provision is called ‘prorogation’. Prorogation normally follows the adjournment of the sitting of the House sine die.
The time-lag between the adjournment of the House sine die and its prorogation is generally two to four days, although there are instances when the House was prorogued on the same day on which it was adjourned sine die. It is also not necessary that the two Houses are prorogued on the same day. The normative procedure for prorogation is either a day before or on the day when the Houses are scheduled to adjourn sine die at the conclusion of their session.
A note for the Cabinet Committee on Parliamentary Affairs proposed that the Houses which are scheduled to adjourn sine die on the following day/same day, maybe prorogued on their adjournment sine die, is submitted for the approval of the Minister of Parliamentary Affairs.
After the approval of the Minister, the approval of the Cabinet Committee on Parliamentary Affairs to the proposal contained in the Note is normally obtained through the circulation of papers. In case the Cabinet Committee on Parliamentary Affairs has not been constituted by that time, a note containing the proposal on the above lines, after it has been approved by the Minister, is submitted to the Prime Minister soliciting his approval to the proposal.
After the Cabinet Committee on Parliamentary Affairs/Prime Minister, as the case may be, has accorded his approval to the proposal, the Secretary, Ministry of Parliamentary Affairs, through a letter, communicate the decision of the government in the matter to the Secretaries-General of the two Houses. The two Parliament Secretariats then separately obtain the approval of the President to the proposed date of prorogation of their respective Houses.
After the President has accorded his approval, it is notified in the Gazette Extraordinary, and simultaneously a paragraph in the regard is also inserted in the Parliamentary Bulletin Part II of the respective Houses informing the members of the prorogation of the Houses.
Rule of prorogation in the UK
Most European countries have the most effective means to ensure that the executive will not arbitrarily prorogate the Parliament for which the parliament must have the control on its own suspension or must have the authority to reverse it even if prorogation is announced. Firstly none of these countries allows the executive to prorogue the Parliament in the first place. Parliament is in session only if the presiding officer or presiding body calls for it. European Parliamentary democracies have clearly defined rules and regulations which imply that no powers of executive can arbitrarily be imposed on the Parliament.
But the UK has different Parliamentary democracy as the parliament in the UK has limited powers to prevent its own suspension and the prorogation process has no specific legal rules or regulations. With this, we can compare the systems of prorogations and how the UK gives the executive the power to prorogue the Parliament arbitrarily on its own terms. Most democratic countries don’t allow such prorogation as it is violative of constitutional provisions.
Generally, these democracies give veto power to the parliament to ensure that executives do not misuse their power. The UK has very different and unusual forms of parliamentary proceedings as it has limited powers to prevent its own suspension and no proper defined legal basis in order to prevent it from being prorogued by the executive.
R vs the Prime Minister
This appeal was about the advice given by the Prime Minister to the Queen to prorogue the Parliament and questions started to arise as to the legitimacy of such an act as to whether it was lawful or not. The director of legislative affairs sent a memorandum to the Prime Minister with recommendation with contents as to request the Queen for the prorogation of the Parliament. So it was formally advised by the prime minister to Her Majesty to prorogue the parliament.
For which a meeting was arranged by the Queen at Balmoral Castle with Mr Jacob Ress-mogg, Leader of the House of Commons and Lord President of the Privy Council, Mr Mark Spencer, the chief whip, and Baroness Evans of Bowes Park, Leader of the House of Lords. For this an order was passed at the Parliament for the prorogation of the same, a cabinet meeting was also set up for the decisions. After that, the decision was made public and informed to all the members of the Parliament.
With this Mrs, Miller appealed at the High Court of England Challenging the legitimacy of the prorogation of the Parliament. The House of Commons voted to decide what business they would transact. Later that day European Union (Withdrawal) (No 2) Act got passed in the House of Commons as well as the House of Lords along with royal assent. The main object of this act was to prevent the United Kingdom from leaving European Union without any withdrawal agreement.
The questions before the Supreme Court were: whether the Prime Minister’s advice to the Queen was lawful or justiciable in a court of law? Whether the court has the power to do so, and by what standard is its lawfulness to be judged? Whether this prorogation was lawful? If it was not, what remedy should the court grant?
Cherry and others vs Advocate General for Scotland (Scotland)
A case was filed in the Scottish courts by the few members of Axiom Advocates against the controversial move in the UK Parliament been prorogued arbitrarily. The United Kingdom government contended that these are their personal and highly political matters and the courts are not competent enough to deal with such matters as these are political matters and no law is involved here. Also, the petition should be non-justiciable.
Even if the courts decide to entertain the petition then the United Kingdom government contended that the Parliament was prorogued with sufficient causes or on reasonable circumstances and this was not arbitrary. The petitioner sought interim orders from the court as the Queen had been advised by the Prime Minister to prorogue the Parliament. But Lord Doherty denied such interim orders but the substantive hearing was taken forward with.
The two issues that were raised were
- Whether the United Kingdom Government’s prorogation of the Westminster Parliament from 9th September to 14th October 2019 was lawful?
- Whether the prorogation should be quashed or not?
The petitioners claimed that the reason behind this prorogation was to remove the Westminster Parliament’s constitutional role of holding the government politically to account and that this was accordingly unlawful. Interim orders were filed by the petitioners regarding the above matter. Lord Doherty refused these orders from being brought for substantive hearing. The petition was non- justifiable for which it was not entertained by Lord Doherty.
This decision of Lord Doherty has been appealed again in the first division. It was argued by the petitioners that Lord Doherty has erred by giving that the petition is not to be justiciable. Contrary to this the first division was of the opinion that the prorogation of Westminster Parliament was unlawful. When appealed to the UK Supreme Court on 24th September 2019, it was held that the petition was justiciable and this action of the Prime Minister advising the Queen was to prevent the constitutional role of Parliament in holding the government to account.
This decision to prorogue the Parliament was later found to have been taken without any reason. Hence, it was held that it was unlawful to prorogue in such a manner and such prorogation was declared to be null and void and has no effect.
Mrs Miller’s appeal against the English decision in R vs The Prime Minister and The Advocate General’s appeal against the Scottish decision in Cherry and others vs the Advocate General of Scotland was held to be adjudicated by a panel of 11 judges, also the maximum judges permitted to sit. The High Court of England and Wales held that Mrs Miller’s claims of the issues were not justiciable.
The Inner House of the Court of Session in Scotland held that the Axiom Advocate’s appeal was justifiable, as courts do play a very important role in parliamentary scrutiny of the government, even after that if prorogation is followed it would be void and has no effect on the parliamentary proceedings. These judgments prove that if a parliament is prorogued without reasonable justification then it is unjustifiable.
Also, each step of the Court’s analysis applied well-established legal principles. This is a so-called controversy as the United Kingdom wants to leave the European Union. This was a practice where the monarch could prorogue a parliamentary session because they felt so. This is a power of royal nature and this is not to be misused.
Somewhere there was a need felt for prorogation to be abolished. This form of prorogation must be codified for the safeguards. These judgments were groundbreaking constitutional judgments that spoke with a clear and unified voice at a crucial time in British constitutional history. It emphasizes the importance of constitutional principles and that a well-functioning separation of powers means that the Courts will review prerogative powers with reference to these principles.
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